Ehiabor v Royal Borough of Kensington & Chelsea

Under the Housing Act 1996, a dependent child who is a person from abroad and subject to immigration control is ineligible for housing assistance unless within a prescribed class. The child must then be disregarded when assessing another household member’s priority need.

A person may require leave to remain even though there is no legal obligation to apply for it. A person without a right of abode falls within the immigration-control category under the Immigration Act 1971. That principle applies to a child born in the United Kingdom who is not a British citizen and has no right of abode. The appeal was dismissed.

Ms Ehiabor, who was eligible for housing assistance but had no priority need in her own right, applied to the Royal Borough of Kensington and Chelsea as homeless. Her adult sister and the sister’s son, Samuel, were accepted as members of her household and as dependants. Samuel was born in the United Kingdom, was not a British citizen, and had no right of abode.

The council decided that Samuel was subject to immigration control and could not confer priority need under section 185(4) of the Housing Act 1996. HHJ Ryland dismissed an appeal from that review decision. The issue before the Court of Appeal was whether a UK-born child lacking leave to remain required leave under the Immigration Act 1971 and was therefore subject to immigration control.

1. Disposition. The appeal was unanimously dismissed. Pill LJ gave the leading reasoning. Arden LJ agreed and added observations; Scott Baker LJ agreed with Pill LJ’s reasons.
2. Housing legislation. Section 185(2) of the Housing Act 1996 excludes a person subject to immigration control from housing assistance unless regulations prescribe an eligible class. Under section 185(4), a person from abroad who is not eligible must be disregarded when deciding whether another person is homeless or has a priority need. Samuel was not said to fall within a prescribed class. The appellant therefore could not rely on his presence to establish priority need.
3. Meaning of requiring leave. Section 13(2) of the Asylum and Immigration Act 1996 must be read with the Immigration Act 1971. The phrase requiring leave describes a person’s need for leave to remain. It does not require a legal obligation to make an application. The Court applied the reasoning in LB Barnet v Abdi & Ismael [2006] 1 WLR 2771, including the distinction between leave to enter and leave to remain.
4. Application of the 1971 Act. Section 1(1) concerns persons with a right of abode. Section 1(2) places other persons within a system of permission, regulation and control. The classification does not depend on where a person was born. Samuel was not British and had no right of abode, so he fell within section 1(2) and required leave to remain. He was not obliged to apply while in the United Kingdom, although he could apply to regularise his position.
5. Additional points. The court regarded Immigration Rule 304 as consistent with the statute but not an aid to statutory construction. The Code of Guidance was consistent with the council’s approach. Arden LJ observed that “person from abroad” need not mean a person who physically arrived from abroad, but left open whether an application for leave had to be made on the child’s behalf.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1074 dismissed the appeal and upheld the decision below.
• Central London Civil Justice Centre: On 26 October 2007, HHJ Ryland dismissed the appellant’s appeal from the council’s review decision under section 202 of the Housing Act 1996.
• Royal Borough of Kensington and Chelsea: The review decision concluded that Samuel was subject to immigration control and could not confer priority need.